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IN THE COURT OF III ADDITIONAL ASSISTANT SESSIONS JUDGE ::
KAKINADA
PRESENT: Dr.B. LAKSHMI NARAYANA
II ADDL. ASST. SESSIONS JUDGE, KAKINADA
(FAC) III ADDL.ASST SESSIONS JUDGE, KAKINADA
Tuesday, this the 10th day of March, 2020
SESSIONS CASE No.127/2019
(PRC.No.82/2018 of IV Addl. Judicial First Class Magistrate’s Court, Kakinada in Cr.No.133/2018 of SHO, III Town L & O Police Station, Kakinada)
Complainant: Accused: NeelapuNagaraju@Raju, State: Sub-Inspector of Police,S/o.Gurumurthy, age 42 years, III Town L & O P.S, Kakinada.C/Reddika,D.No.2-6-50, Nukalamma Manyam, Kakinada, Driver of Auto bearing No.AP 05 TE 0833, Cell No.87908 56087, Aadhar No.4337 8368 9093.
Prosecution conducted by:Accused defended by: Sri K.Sridhar Sri K.B.Pratap Kumar Advocate for accused
Additional Public Prosecutor,
Kakinada.
Nature of Offence:Under Section 304 part II R/w 279 Indian Penal Code and 185 of Motor Vehicle Act.
Plea of the accused:Guilty
Finding of the Judge:Guilty
Sentence order:In the result, accused is found guilty for the offence under section 304 part-II of read with 279 of Indian Penal Code and he is convicted for the said offence under section 235(2) of Cr.P.C. for a period of five years simple imprisonment and he is sentenced to pay a fine of Rs.5,000/- (Rupees five thousand only) in default of payment of fine, he shall undergo simple imprisonment for a period of six months. The accused is also found guilty for the offence under section 185 of M.V.Act and he is convicted for the said offence under Section 235(2) Cr.P.C. for a period of six months simple imprisonment and sentenced to pay a fine of Rs.2,000/- (Rupees two thousand only) in default of payment of fine, he shall undergo simple imprisonment of a period of three months. Both the sentences are shall run concurrently. Accused was informed of his right to prefer appeal against the 2
Judgment of this Court and right to get free legal aid before the appellate Court. The period of remand undergone by accused at the time of remand from 07.08.2018 to 06.09.2018 shall be given set off under Section 428 Cr.P.C.
J U D G M E N T
1.The Sub-Inspector of Police, III Town L & O P.S, Kakinada filed charge-sheet against the accused in Crime No.133/2018 indicting him of the offence punishable under Section 304 Part-II R/W 279 of Indian Penal Code and 185 of Motor Vehicle Act.
2.The case of the prosecution in brief as follows;
Janipalli Ashok (L.W.1) is a resident of Indrapalem, Kakinada rural. He is married, he blessed with a son. Janipalli Ashok (L.W.1) is working in a Sugar Factory at Silk Road, Valasapakala. The deceased is resident of D.No.16.34.9, 2nd Street, Sambamurthy Nagar, Kakinada. He is married and had one son. The deceased is working as Coolie in Ruchi Gold
Oil Company, Beach Road, Kakianda since about 5 years. The deceased used to go on cycle to Ruchi Gold Oil Company for work and after completion of work used to rerun back to home on cycle. On 03-08-2018 at about 1 PM the deceased started from his house to attend for his duty at Ruchi Gold Oil
Company. At about 1.15 PM the deceased was proceeding from Lavanya
Hotel side towards Aithya Mahila College by pulling his cycle, at that time, from behind the deceased, the accused driver of auto bearing NO.AP 05 TE 0833 came in a rash and negligent manner at high speed and dashed the cycle of deceased from behind. The deceased fell down from cycle to the respondent. Immediately, Janipall Ashok (L.W.1) who is present nearby a motor cycle mechanic shop and attending repair work of his motor cycle, rushed there and found The deceased sustained bleeding injury over back side of Head and blood was oozing from both ears. L.Ws 2 to 4 also witnessed the offence. Later L.W.1 got shifted the deceased by called 108 3 ambulance to Government General Hospital, Kakinada for treatment, where the Duty Doctor examined the deceased and declared he was brought dead.
The auto driver was caught by public, he is in drunken state and took to III
Town L & O PS, Kakinada. Hence the auto driver was sent to Government
General Hospital, Kakinada for medical examination and drunkenness certificate. Thus the deceased died due to the injuries caused by hit of auto bearing NO. AP 05 TE 0833 driven by accused driver in a rash and negligent manner at high speed in drunken state.
3.On receipt of death information, the Sub-Inspector of Police, III
Town L & O P.S., Kakinada altered sections of law from 304(A) to Section 304
Part II R/w 279 Indian Penal Code for having drove the auto by accused endangering to human lives in drunken state and also 185 Motor Vehicle Act.
4. The learned IV Addl. J.F.C.Magistrate, Kakinada, based on the charge-sheet and other material on record, took the case on file for the offence under Sections 304(A) Part II R/w 279 of Indian Penal Code and 185 of Motor Vehicle Act, furnished the case copies to the accused, as contemplated under section 207 of Criminal Proceedure Code, and duly committed the case as P.R.C.No.82/2018 to the Hon'ble District Court,
Rajamahedravaram.TheHon'blePrincipalSessionsJudge,
Rajamahendravaram numbered the same in Sessions Case No.127/2019 and made over the same to this court for disposal according to law.
5. On hearing the Additional Public Prosecutor and counsel for the defence under Sec.226 Criminal Procedure Code, and on 03-12-2019 charge was framed under Sec.228 Criminal Procedure Code, for the offence punishable under Section 304(A) Part II R/w 279 of Indian Penal Code and 185 of Motor Vehicle Act, against the accused, read over and explained to them in Telugu for which he pleaded not guilty and claimed to be tried. The accused is defended by Advocate.
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6. During trial, prosecution had got examined P.W.s.1 to 11 i.e., (L.W.1)-Janipalli Ashok as P.W..1, (L.W.2)-K.Sekhar as P.W..2, (L.W.5)-
G.Sridevi as P.W..3, (L.W.6)-G.Kamalakar Rao as P.W..4, (L.W.3)-Mudum
Mohanrao as P.W.5, (L.W.9)-K.Venkata Satyanarayana as P.W..6, (L.W.12)-
Dr.Uma Maheswara Rao as P.W..7, (L.W.13)- M.Kala Jyothi as P.W..8, Dr.Md
Abdul Saleem as P.W..9, (L.W.14)-Sk.Moulana as P.W..10, (L.W.15)-
P.Kishore Kumar as P.W..11. The evidence of L.Ws. 4, 7, 8 10, 11 and 16 (Ch.Nagendra Prasad, Ch.Srinivas, Kanigella Venkateswar Rao, Darsi Veera
Venkata Satyanarayana, Gorli Srinivasarao, D.Ramesh Babu) were given up the Learned Counsel for the Assistant Public Prosecutor.
7.To substantiate its case, the prosecution has examined P.W.s.1 to 11 and marked Exs.P.1 to P.11 and no material objects were marked. On behalf of the defence, no documents were marked.
8. After closure of prosecution side evidence, the accused was examined under Sec.313 Criminal Procedure Code, the accused denied the incriminating material placed against him and reported no defence evidence.
Hence, the defence evidence was closed.
9.Heard both sides.
10.Now, the point that arises for consideration is:
“Whether the prosecution prove the guilt of the accused for the offence punishable under Section 304 Part II r/w 279 Indian Penal Code and 185 of MV Act beyond all reasonable doubt or not”?
P O I N T:
11.In order to prove its case, the prosecution has examined P.W.s.1 to 11 and got marked Exs.P.1 to P.11. Apart from that P.W..1-Janipalli Ashok deposed that on 3.8.2018 at 12:45 PM he went to the bike mechanic shed of
L.W2 K. Shekhar(P.W..2), situated at Aditya Mahila Degree college, Sama- 5 murthy nagar. He further deposed that while he was getting his bike repair at 1:00 PM he heard a big sound at a distance of 50 meters. He further de- posed that Immediately himself and P.W.2 went to the said place and found one cyclist with back side head injury lying on the road. He further deposed that they also found one Auto bearing no. AP05TE0833 beside the cycle. He further deposed that the said Auto is on the right side of the cycle. He fur- ther deposed that he has seen the auto driver. He further deposed that the accused, who is present in the court hall was the auto driver at the time of accident. He further deposed that the accused was in drunken condition at the time of the said incident. He further deposed that immediately he called for ambulance and himself and P.W.2 shifted the injured to Government Gen- eral Hospital, Kakinada. He further deposed that after they shifted the in- jured to hospital, the doctor on examination declared as dead. He further deposed that he gave statement to the III Town Police and basing on his statement the police have registered case against the accused. He further deposed that Ex.P1 is his statement dated: 3.8.2018.
In the cross examination he stated that in his Ex.P1 statement or in my 161Criminal Proceedure Code statement he did not state about the auto driver and the drunken condition of the auto driver at the time of the said incident. He denied that the place where the incident was happened is not route to reach his working place. He denied that he was not present at the place of accident and he has not witnessed the accident. He denied that he am deposing false to help the family of the deceased. He denied that he has not seen the accused and the auto bearing no. AP05TE0833 at the place of the accident.
12.K.Sekhar ( P.W..2 )deposed that he is running a bike mechanic shed besides Aditya Mahila Degree College, Samamurthy nagar, 5th street.
He further deposed that on 3.8.2018 at 1 p.m while he was in his bike me- chanic shed he heard sound. He further deposed that on hearing the sound 6 he turned back and went to the place of the accident which took place at a distance of 50 meters away from his shed. He further deposed that immedi- ately himself and P.W..1 went to the spot and found one person with back head injury lying on the road. He further deposed that they also found one auto bearing no. AP05TE0833 besides the cycle of the injured person. He further deposed that he has seen the person in the driving seat of the auto, in drunken condition. He further deposed that the person who is in the court hall is the person who drove the auto on the date of incident. He further de- posed that himself and P.W.1 shifted injured in 108 ambulance to Govern- ment General Hospital, Kakinada. He further deposed that the doctor exam- ined the injured and declared him as dead. He further deposed that police have examined and recorded his statement.
In cross examination he denied that in his 161Criminal Procee- dure Code statement he did not state about the appearance of the accused at the place of the incident and drunken condition of the accused at the time of the said incident. He further denied that he has have never seen the ac- cused and since the accused in the court in the accused place, he is identify- ing him as the accused in this case. He further denied that he is deposing false to help the family of the deceased in order to claim insurance amount to the family members of the deceased. He further denied that he has not seen the accused at the place of accident. He further denied that he is de- posing false.
13.G.Sridevi (P.W..3 ) deposed that she is residing at 2nd lane, samamurthy nagar, Kakinada. She further deposed that her husband died on 3.8.2018. She further deposed that her husband used to do Packing work in Ruchi gold factory. She further deposed that she came to know that on 3.8.2018 at 2 PM while her husband going to factory on a cycle an auto hit him, due to which he sustained injury on the back side of the head. She further deposed that when she went to the scene of offence she found the 7 cycle and auto. She further deposed that her husband was shifted to Gov- ernment General Hospital, Kakinada. She further deposed that her husband died on the same day at 4 PM. She further deposed that on the next day morning at the mortuary the police have examined her and recorded her statement.
In the cross examination she denied that in her 161Criminal Pro- ceedure Code statement she did not state to the police that she has seen the cycle and auto at the scene of offence. He further denied that her deceased husband died not due to hit of auto but he died due to fall from his cycle.
14.G.Kamalakar Rao ( P.W.4) deposed that P.W.3 is his sister in law.
He further deposed that his brother’s name is Ghostu Venkateswara Rao. He further deposed that P.W.3 called him and informed him that his brother
Venkateswara Rao died. He further deposed that immediately he went to
Government General Hospital, Kakinada. He further deposed that in the hos- pital he came to know that his brother met with an road accident that an auto hit him. He further deposed that on the next day morning at mortuary the police examined him and recorded his statement.
In the cross examination he further deposed that his deceased brother died not due to hit of auto but he died due to fall from his cycle.
15.Mudum Mohan Rao (P.W.5 )deposed that the accident was oc- curred at 5th lane, Sambamurthy Nagar, kakinada on 3.8.2018 at about 1
PM, while he was going to home for lunch from J. Ramaraopeta. He further deposed he was present at the scene of offence and he has witnessed the accident. He further deposed that the cyclist was proceeding towards Aditya
Degree college, at that time the accused drove his auto in rash and negligent manner with high speed and hit the cyclist from back side, due to which the cyclist fell from the cycle and sustained head injury on back side. He further deposed that the accused is the person who drove the auto and in the driv- 8 ing seat on the date of accident. He further deposed that he cannot say the auto number. He further deposed that after the ambulance came the me- chanic and another person shifted the injured to Government General Hospi- tal, Kakinada. He further deposed that on the same day he came to know from P.W.2 that the injured succumbed to death. He further deposed that police examined him and recorded his statement.
In the cross examination he denied that in his 161Criminal Pro- ceedure Code statement he did not state that after the accident the accused was in the auto driving seat and they handed over him to the police. He de- nied that in his 161Criminal Proceedure Code statement he did not state that he was present at the scene of offence when the accident took place. He fur- ther deposed that himself went to the scene of offence at first. He further deposed that himself and the deceased are belong to 1st lane, Sambamurthy
Nagar. He denied that himself and the other people gathered at the scene of offence did not handover the accused to the police. He further denied that he is identifying the accused, as the police have shown him the accused in the
P.S. He denied that the accused is no way concerned with the alleged acci- dent.
16.K.Venkata Satyanarayana(P.W.6), Village Revenue Officer de- posed that at present he is working as Village Revenue Officer, Kakinada Ru- ral. Previously during the period from 2015 to dated: 2.7.2018 he worked as
Village Revenue Officer, Kakinada Urban. He further deposed that on 3.8.2018 III Town Police called him at 5 p.m.,. He further deposed that at the scene of offence they found one auto and one cycle. He further deposed that one passenger auto bearing No. AP05TE0833 was at the scene of of- fence. He further deposed that the police prepared Rough sketch and took photographs at the scene of offence. He further deposed that he prepared scene observation report at the request of the police and himself, L.W10 and the police put our signatures on the scene observation report. He further de- 9 posed that he went to Government General Hospital Mortuary, on the intima- tion of the police. He further deposed that as per the inquest report ghostu
Venkateswara rao died in road accident. He further deposed that as per the inquest report panchayathdars he is of the opinion the deceased died due to hit of auto in rash and negligent manner and in high speed, and due to sus- taining head injury by the deceased in the said accident.
In cross examination he deposed that the scene of offence is a busy locality. He further deposed that on the scene of offence road margin the vehicles came for painting work will be placed. He further deposed that
Ex.P2 report was prepared by him on the dictation of the police. He further deposed that as per Ex.P3 report the deceased died due to injuries on his head but he cannot say how the deceased died and which vehicle hit the de- ceased. He further deposed that Ex.P3 was prepared by him on the instruc- tion of his police. He denied that Ex.P2 and Ex.P3 are prepared by him in III
Town P.S and they are not prepared by him at the scene of offence and at
Mortuary, Government General Hospital, Kakinada, as stated by him in his chief affidavit. He further deposed that it is not true to suggest that he is de- posing false.
17.Dr.Uma Maheswara Rao (P.W.7), Associate professor deposed that he is working as Associate professor, Department of Forensic Medicine,
Rangaraya Medical College/ Government General Hospital, Kakinada since
July, 2016. He further deposed that on 4.8.2018 he received intimation from
Sub-Inspector of Police, III Town P.S., Kakinada to conduct post martam ex- amination over the dead body of Ghostu Venkateswara Rao. He further de- posed that accordingly, he commenced his examination on the same day at 2:15 PM and concluded at 3:30 PM. He further deposed that on his examina- tion he had found two external injuries and five internal injuries. 2 external injuries are 1. A Reddish Contusion of size 6X4 cm present on right parieto temporal region of hand. 2) A reddish Grazed Abrasion of size 6 X4 cm 10 present on back of left lower Abdomen. A 5 Internal injuries are 1) A reddish
Haematoma of 10 X8 Cm size present on right parieto temporal regions of head under the scalp. 2) A reddish haematoma of 8 X5 cm size present on occipital region back of head under the scalp. 3) A sutural fracture of 10 cms size present on left occipital sutural line under the scalp. Fractured bone edges blood stained. 4) Diffuse Subdural haematoma along with diffuse sub arachnoid haemorrhage present on both cerebral hemispheres of the brain.
5) A fissured Fracture of 8 Cm in length present on base of skull in right pos- terior cranial fossa extending onto right middle cranial fossa. Fractured bone edges blood stained. He further deposed that the approximate time of death is about 24 hours prior to his examination. He further deposed that the cause of death is due to cranio cerebral injury (head injury). He further de- posed that Ex.P4 is post martam report issued by him.
18.M.Kala Jyothi (P.W.8), Assistant Motor vehicle inspector deposed that at present he is working as Assistant Motor vehicle inspector, Theta- gunta check post, Annavaram. She further deposed that previously she worked as Assistant motor vehicle Inspector, Kakinada from 23-2-2017 to 13-7-2019. She further deposed that on 8.10.2018 the Sub-Inspector of Po- lice, III Town P.S, Kakinada sent a requisition to examine the passenger Auto bearing no. AP 05 TE0833. She further deposed that accordingly on the same day she went to III Town P.S. and examined the passenger auto bear- ing no. AP05TE0833, and found the following damages on the vehicle. 1) wind shield on left side glass broken, 2) Left side head light broken. 3) vehi- cle put to road test and found the breaking system was intact and in order.
She further deposed that after examination she issued report. She further deposed that according to her examination the cause of accident is not due to any prior mechanical defects while involved at the time of accident. She further deposed that Ex.P5 is MVI report.
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In cross examination she deposed that after two months of the alleged accident she received requisition from III Town Police for examina- tion of the passenger auto bearing no. AP05TE0833. She deposed that she does not know how the vehicle was dealt by the police during the period of two months i.e., from 03.08.2018 to 08.10.2018. She further deposed that the particulars of the vehicle are furnished by the police to her. She further deposed that the particulars of columns 16 to 18 of Ex.P5 are furnished by the police to her. She denied that she did not visit III Town P.S, Kakinada and she did not examine the auto bearing no. AP05TE0833 in III Town P.S.
kakinada and she has prepared Ex.P5 without examining the vehicle. She denied that she is deposing false to help the police.
19.Dr.Md. Adbul Saleem (P.W.9), Doctor deposed that presently he is working as Casualty Medical officer at Government General Hospital, Kaki- nada. He further deposed that he is attending before this Court on this day on receipt of summons. He further deposed that on 03.08.2018 at about 3.59 P.M he has examined one Nelapu Raju (Accused), who was produced
before me by P.C.2849 of III Town Law and order police, Kakinada and found
he was in intoxicated under influence of alcohol. He further deposed that ac- cordingly he has issued certificate to concerned police. Witness identified the certificate issued by him and same is marked as Ex.P6 along with O.P. re- ceipt.
In cross examination he deposed that the above said P.C.2849 approached him with a request memo to examine the Nelapu Raju. He fur- ther deposed that Ex.P6 has no reference about the written letter but written the P.C number. Witness adds that original letter received from concerned police was attached to the accident register. He further deposed that he has not received any direction while receiving summons for the production of ac- cident register. He further deposed that he has examined patient to issue
Ex.P6 i.e. Speech slurrish, staggering gait, breath smell alcohol, pupils di- 12 lated both eyes. He further deposed that he has not mentioned in Ex.P6 about what test he has conducted on patient to come conclusion. He further deposed that the tests were conducted by him are not sufficient to issue cer- tificate. He denied that that when a person consumed Ayurvedic medicine then his breath was smell out as consumed alcohol. He denied that when a person has no sleep will affect his eyes in reddish and pupils dilate. He fur- ther denied that he has issued Ex.P6 to help the police without examining the patient. He denied that he has issued the Ex.P6 with previous date.
20.Sk.Moulana (P.W.10), Head Constable deposed that presently he is working at Head Constable at Korangi police station. He further deposed that on 03.08.2018 at about 2.15 P.m, he has received information from outpost of Government General Hospital, Kakinada and informed about the death of a person. He further deposed that then he visited Government Gen- eral Hospital, where he has recorded the statement of PW1. He further de- posed that after recorded the statement of PW1 he went to police station and registered First information report under crime No.133/2018 for the of- fences under section 304A of I.P.C. He further deposed that after registered the First information report he has submitted the First information report to
Hon’ble Special Mobile Judicial First Class Magistrate, Kakinada and copies to
my higher authorities. He further deposed that thereafter he again visited the Government General Hospital, Kakinada where he has secured the pres- ence of Ashok (PW1) and recorded his statement. He further deposed that he has prepared rough sketch for scene of offence. He further deposed that he secured the presence of Koppada Sekhar (PW2), Mudugu Mohan Rao (PW5) and Chodi Nagendra Prasad (LW4). He further deposed that on that he has referred the accused for medical examination as he was in drunken condition. Thereafter he handed over the case file to my Sub-Inspector of police.
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In cross examination he deposed that PW1 not stated before him as he seen driver of crime auto, so also he can identify the driver of crime auto. He further deposed that PW2 not stated before him as this accused present at place of accident and he was in drunken condition. He further de- nied that he has not referred the accused for any medical examination. He further denied that he has not visited the scene of offence, so also not pre- pared the scene observation report, rough sketch of scene of offence and taken photographs was taken at scene of offence. He further denied that
PW5 not handed over accused to him at police station. He further denied that he has not referred the accused for medical examination as he has de- posed. He further denied that accused has no way connection with crime auto. He further denied that they falsely implicated the accused in this case though he was never committed any accident. He further denied that he is deposing false to substantiate their version.
21. P. Kishore Kumar (P.W.11), Sub-Inspector of Police deposed that presently , he is working as Sub-Inspector of Police, Angara Police since 09.01.2020. He further deposed that previously he worked as Sub-Inspector of Police, III town P.S, Kakinada from 21.04.2015 to 10.09.2018. He further deposed that on 04.08.2018 he took up investigation from P.W.10 in crime no. 133/2018 U/sec. 304-A I.P.C. He further deposed that he has verified the investigation done by P.W.10 and found it to be correct. He further deposed that he got conducted inquest over the dead body of the deceased with the help of mediators in the presence of L.W10 and L.W11 and P.W.6, P.W.3,
P.W.4, L.W7 and L.W8. He further deposed that he altered the section of law from Sec. 304-A Indian Penal Code to 304 part-II, R./w 279 I.P.C and Sec.
185 of Motor Vehicle Act basing on Ex.P6 issued by P.W.9. Ex.P11 is alterna- tion memo. He further deposed that he submitted alternation memo to 5th
Additional Judical 1st Class Magistrate, Kakinada. He further deposed that on
07.08.2018 he arrested the accused on his appearance before the police sta- 14 tion on issuing Sec. 41 Criminal Proceedure Code notice for his appearance and produced him before the court for judicial demand. He further deposed that on 04.09.2018 he sent requisition to P.W.8 to Inspect the crime Vehicle bearing no. AP05TE0833 and to issue report. He further deposed that on 10.08.2018 he collected Postmortam certificate of the deceased from P.W.7.
He further deposed that on 10.09.2018 he got transfer and handed over the investigation to L.W16. He further deposed that L.W16 collected M.V report from P.W.8 on 08.10.2018 and filed charge sheet against the accused for the offence U/sec. 304 part-II R./w.279 I.P.C and Sec. 185 of Motor Vehicle Act.
In cross examination he deposed that the distance between III
Town P.S, kakinada and the court is 3 KM. He further deposed that everyday the court constable appears before the court. He further deposed that
Ex.P11 shows that the alternation memo was sent to the court on 07.08.2018. He denied that suggest that the date of alteration memo and the date of arrest of the accused is same date. He further deposed that he has not recorded the statement of the wife of the accused when she pro- duced the accused before III Town P.S. He denied that the accused was not produced by his wife before III Town P.S and so the same was not reflected in C.D file. Witness again says that in the C.D file dated. 03.08.2018 he got issued notice to the accused for his appearance U/sec. 41 of Criminal Pro- ceedure Code He further deposed that he did not examine the crime vehicle owner. He denied that he has sent the crime vehicle for examination by mo- tor vehicle inspector after long gap of the alleged accident. He denied that
Ex.P6 is created one for the purpose of this case. He denied that he did not do investigation in this case. He denied that without verifying the record he has altered the section of laws. He denied that the accused is no way con- cerned with the alleged accident. He denied that the charge sheet filed against the accused is not true and correct.
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22.The accused faced trial for the offence under Section 304 Part-II read with Section 279 of Indian Penal Code and Section 185 of Motor Vehicle
Act. First we have to observe the provision of law to marshall the said provi- sion with the evidence of prosecution. Sections 279, 304 Part-II of Indian
Penal Code and Section 185 of Motor Vehicle Act, which read as follows:
Section 279 in The Indian Penal Code:
279. Rash driving or riding on a public way.—Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 304 Part-II of Indian Penal Code,1860:
Whoever, commits culpable homicide not amounting to mur- der, shall be punished with imprisonment for life, or impris- onment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if, the act is done with the knowledge that is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
Section 185 in The Motor Vehicles Act, 1988
185. Driving by a drunken person or by a person under the influence of drugs.—Whoever, while driving, or attempting to drive, a motor vehicle,— 1[
(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, or]
(b) is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar 16 offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both. Explanation.—For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor
23.In this case, the prosecution alleged that the accused drove the vehicle i.e. Auto bearing No.AP05 TE 0833 in a rash and negligent manner at high speed and dashed the cycle, which resulted the death of Ghostu
Venkateswara Rao son of Guruswamy. The prosecution further alleged that the auto driver i.e. accused was caught hold by public while so, he was in drunken state brought to III Town Law and Order Police Station, Kakinada.
On that they referred the accused to Government General Hospital, Kakinada for medical examination and drunkenness certificate. Hence, investigation officer charged the accused i.e. driver of auto bearing No.AP05 TE 0833, who driven the auto in a rash and negligent manner in drunken state for the offence referred supra. In this regard, the prosecution examined the defacto complainant as P.W.1. He deposed that on 03.08.2018 at about 12.45p.m., he went to the mechanic shed of P.W..2 i.e. K.Sekhar situated at Aditya
Mahila Degree College, Sambamurthy Nagar. While he was getting his bike repair at 1.00 p.m., he heard a big sound at a distance of 50 meters.
Immediately he and P.W.2 went to the said place and found one cyclist with back of head injury lying on the road. He further deposed that he found one auto bearing No.AP 05 TE 0833 beside the cycle. He further deposed that the said auto is on the right side of the cycle. He identified the accused in court hall as driver of crime vehicle. He further deposed that the accused was in drunken condition at the time of the said accident. He further deposed that he called for Ambulance and after Ambulance reached to there he and P.W..2 were shifted the injured to Government General Hospital, Kakinada, where the Doctor declared as he died. In his cross examination, he admitted that 17 his 161 Criminal Procedure Code statement and Ex.P.1 did not disclose about the auto driver and so also drunken condition of the driver at the time of the accident. He further deposed that Ex.P.1 statement did not gave the description/particulars of the accused. Whereas, P.W.2 corroborated with
P.W..1 by testified that on 03.08.2018 at about 12.00pm., while he was at mechanic shed on heard the sound he went to the place of the accident, which took place at a distance of 50 meters away from his shed. He further deposed that the cyclist found with back head injury on road and also found auto bearing No.AP05 TE 0833. He further deposed that right side pedal of the cycle was broken and head light of the auto was also broken. He identified the driver of the accused in court hall as driver of the auto and he is in drunken condition. In this regard, P.W..10 deposed that on 03.08.2018 at about 2.15pm., he received information from outpost of Government
General Hospital, Kakinada, who informed about the death of a person. He further deposed that then he went to Government Hospital and recorded the statement of P.W.1 i.e. Ex.P.1. He further deposed that he registered the original First Information Report for the offence under Section 304-A of
Indian Penal Code.
24.When we analyzed the evidence of P.W.s.1 and 2, P.W..1 and P.W.2 on heard the sound about the accident, both were went to place of accident and shifted the injured by calling Ambulance. P.W..1 testified that he was given statement regarding the death of deceased Ghostu
Venkateswararao. P.W..2 also testified that he along with P.W.1 went to the place of accident. In this regard, the learned counsel for defence argued that
P.W.2 statement does not reveal as he accompanied with P.W.1 to shift the deceased Ghostu Venkateswararao for treatment. It is no doubt 161 Criminal
Proceedure Code statement of P.W.2 has no recital as he also accompanied with P.W.1. But regarding the presence of P.W..2 along with P.W..1 went to the place of accident and heard the sound is much corroborating with the 18 evidence of P.W.1. In this regard Defence also no elicited any contra to the evidence of P.W.1 & P.W2. Moreover defence suggest that P.W.2 mechanic shop is not situated on main road. Whatever defence admitting the shop of
P.W.2 situated near to scene of offence. Though, prosecution examined P.W.
5 his presence is highly doubtful at the time of accident. Because, in his cross examination he clearly deposed that his duty timings are 9.00am., to 1.00pm., and from 2.15pm., to 5.30pm., and at the time of accident he was proceeding to his home by walk. He also admitted when proceed from
J.Ramarao peta to Sambamurthy Nagar it will take one hour to one and half hour by walk. When a person is having only one hour fifteen minutes lunch break, there is no chance to that person to proceed as deposed by P.W..5. As such, the presence of P.W..5 is in doubtful. However, it is an undisputed fact that deceased Ghostu Venkateswararao was died due to accident. This is also established fact that the accident caused to deceased Venakateswarao while he was proceeding on cycle due to dashed the auto bearing No.AP05 TE 0833. The Doctor, who conducted autopsy on the dead body of the deceased
Venkateswararao, clearly opined that the cause of death of deceased in this case due to “Cranio Cerebral Injury”(Head Injury). The Doctor who conducted postmortem also observed two external injuries i.e., contusion and abrasion over right Pareto temporal regions of head and left lower abdomen. The Doctor also observed five internal injuries caused over head on different parts.
25.Now the question is whether the accused herein is driver of the crime auto at the time of accident or not. Regarding involvement of auto bearing No.AP 05 TE 0833 in commission offence is not in dispute. In this regard, the prosecution rest only on the evidence of P.W.s.1, 2 and 5. We have already observed, there is highly impossible the presence of P.W..5 at the time of accident. The evidence of P.W.s.1 and 2 is corroborating with each other, they both together went to the place of accident on hearing 19 sound. In accident cases, no one has scope to see the exact accident because it should be taken as accidentally. We have to observe the surrounding circumstances, whether P.W.s.1 and 2 has any scope to observe the driver of the crime auto at the time of accident. On consider the P.W..10 evidence and so also medical admit intimation, P.W..1 shifted the cyclist i.e.
deceased Ghostu Venkateswararao to Government General Hospital,
Kakinada in an Ambulance. When a person went to the place of accident immediately after heard the sound of the accident, he has every chance to observe driver of the auto. Because he was remained at the place of accident till Ambulance reached to the place of accident after he done phone call for Ambulance. The defence also not disputed regarding this P.W..1 called the Ambulance to shift the injured for treatment. When a person very much present at place of accident to shift the injured for treatment, he has every chance to observe the driver of the crime auto. But in this regard, the learned counsel for defence argued that either P.W.1 or P.W..2 not given any description or physical features in their auto in their 161 Criminal Proceedure
Code statement about the driver of the crime Auto. The learned counsel for defence further argued that police also not conducted any test identification parade. In this regard, the learned counsel for defence relied the decision reported in 2010(3) ALT (Crl.) 169 (A.P.) between K.Rajaiah Vs. State of A.P. represented by Public Prosecutor. The learned counsel for defence straight away taken away this court attention at relevant pages, which read as follows:
18. The Hon’ble Supreme Court, while discussing the judgments in case between State of Maharashtra through
CBI v. Sukhdev Singh alias Sukha (5) (AIR (1992) 3 SCC 700), observed as follows:
“it would be extremely risky to place implicit reliance on identification made for the first time in Court after a long lapse of time. But it has to be kept in mind that this principle will apply to case of total strangers” 20
19. Thus, in the above referred cases, the Hon’ble
Supreme Court has categorically held that by the very nature, the Test Identification Parade of the accused for the first time in Court is a weak piece of evidence and cannot be made as basis for conviction wherein the case the witnesses are total strangers to the accused.
20. Each case has to be decided on its own facts and circumstances. For example, in case where the accused has committed rape on a victim and where the victim had ample opportunity to observe the accused closely, there are circumstances that even without holding Test
Identification Parade, the evidence of such witness, if inspiring confidence,c an be relief upon. For example, in a case of decoity, robbery or in case of a murder, where the witnesses had ample opportunity to observe the physical features of the accused and where there was sufficient light, the evidence of such witnesses can be relied upon.
What is to be seen is whether the witnesses had an ample opportunity to get the impressions of the accused imprinted in their mind. Wherein in a case there was no opportunity for the witnesses to see the accused and he had only the opportunity of getting a fleeting glimpse of the accused from a distance and that too when the accused was running away, then it may be difficult to accept the evidence of such a witness. What is to be seen is whether the witnesses had given descriptive particulars of the accused in their earlier statements before the police.
Whether they had stated in their earlier statements under all the circumstances they were able to identify the accused and from the record if it appears that the witnesses had categorically stated on the earlier occasion
before the police that they can identify the accused and as
a mark of guarantee if they had narrated the physical features of accused to the police in their statements, then if the witness identify the accused, may be for the first time in Court, the Court may be justified in accepting the evidence of such witness. Therefore, what is required is that the Court has to consider the facts and circumstances of each case separately and should come to definite 21 conclusion whether the witness had an ample opportunity to see the physical features of the accused or not.
42. In the instant case, since the evidence of P.W..4 and 7 is not inspiring confidence, their evidence cannot be taken as corroborative evidence to the evidence of P.W..3.
Even otherwise, evidence of P.W..3 is not inspiring confidence. Moreover, there is another aspect in this case.
Though the prosecution witness of the case deposed that the accused drove the bus at a high speed, none of the witnesses had deposed that the driver of the bus had driven the bus in rash and negligent manner. Mere driving of a vehicle at a high speed cannot be considered as rash and negligent driving. Of course, the drivers must be careful and they must keep the vehicles in their control whenever they are passing through a village or nearing a school. Unfortunately in this case, there is no evidence to show that any signboard was kept showing the location of school. Normally speed-breakers are to be laid to control the speed of the vehicles near the schools. It is unfortunate that even the scene of offence panchanama shows that there are no speed-breakers near the school.
The school authorities and concerned officials must take proper steps and see that speed breakers are laid near the schools to avoid accidents. In the absence of any speed breaker and in the absence of any signboard near the location of a school, it the driver drives a bus at a high speed, it cannot be treated as rash and negligent driving.
Inspite of speed- breakers, signboards and observing the school or the children, if the driver drives the bus at a high speed, the same my amount to rash and negligent driving on the part of the driver of the bus. But nothing can be inferred without any legal evidence. No conviction can be based on assumptions and presumptions or any inference can be drawn not basing on legal evidence. Merely because a ghastly accident has occurred resulting in death of some person, the accused cannot be convicted.
43. In the light of above discussion, since there is misreading of evidence resulting in miscarriage of justice 22 and that the evidences of witnesses are not based on any legally acceptable evidence, the judgments of both the
Courts below are set aside. The criminal Revision Case is allowed. Consequently, the revision petitioner/accused stands acquitted. Fine amount already paid by him, if any, shall be refunded to him.
26.The learned counsel for defence further relied the decision reported in 2002(2) ALD (Crl.) 729 (SC) between Dana Yadav @ Dahu and others Vs. State of Bihar. The learned counsel for Defence highlightd the observation of Lordship’s, which read as follows:
9.In the present case, appellant No.3-Deo Nandan was undisputedly not named as one of the accused in the first information report, though names of several other accused persons were enumerated therein. In statement made
before the police, no prosecution witness has named him.
He was named in court by Balroop Prasad (PW 3),
Chandrika (PW 4), Bal Govind (PW 8) and Shambhu Prasad
Komal (PW 14) but PW-4 and PW-8 identified another person as this appellant and thus these two witnesses wrongly identified this appellant. So far the other two witnesses, namely, PW-3 and PW-14 are concerned, though they have identified this appellant in court, but they did not disclose his name before the police. There may be a case where an accused is known to a prosecution witness who did identify him at the time of the occurrence but for manifold reasons, he could not have divulged his name to the informant before the first information report was lodged. One of the reasons may be that such a witness could not meet the informant before the first information report was lodged and no sooner, after lodging of the first information report, without any reasonable delay, when he was examined by the police, name of the accused was disclosed. The other reason may be where such a witness received injuries during the course of the occurrence and became unconscious, as such he could not get opportunity to disclose name of the accused to the informant before the lodging of the first information report and no sooner he 23 regained consciousness, name of the accused was disclosed by him in his statement made before the police. These instances are by way of illustrations and cannot be exhaustive. In view of these and similar other circumstances, it can be said that merely because the accused was not named in the first information report, though he was known to some of the prosecution witnesses, no adverse inference can be drawn against the prosecution for not naming such an accused in the first information report. Likewise there cannot be an inflexible rule that if a witness did not name an accused before the police, his evidence identifying the accused for the first time in court cannot be relied upon. There may be a case where a witness has received injury during the course of occurrence, became unconscious and remained as such for few months while in the meanwhile, charge sheet was submitted by the police. In such an eventuality, statement of the witness could not have been recorded by the police and his Identification for the first time in court may be relied upon. In the present case, there is no evidence that this appellant was known to PWs 3 and 14 from before. The occurrence is said to have taken place on 25th April, 1983 whereas PW-3 was examined after two years in the year 1985 and PW-14 after more than two and a half years after the occurrence, i.e., in the month of June, 1986. Thus, it would not be safe to place reliance on the identification of this appellant for the first time in court by these witnesses after an inordinate delay of more than two years from the date of the incident, especially when the identification in court is not corroborated either by the previous identification in the test identification parade or any other evidence. This being the position, we are of the view that the High Court was not justified in upholding conviction of
Deo Nandan (appellant No. 3).
27.But in this regard, it is settled law that identification of the accused in court itself is good identification on the eye of law. It is not always necessary that it must be preceded by the test identification parade, 24 it will always depend upon the facts and circumstances of a given case. In one case, it may not even be necessary to hold the test identification parade while in other, it may be essential to do so. In this case, we have already observed P.W.s.1 and 2 were very much present at place of accident since they heard the sound of accident from 50 meters so that within no gap they can reach the accident place from where they were.
28.In this regard in Shyamal Ghosh Vs. State of West Bengal [2012
AIR(SC) 3539] wherein Hon’ble Apex Court has held that the Code of
Criminal Procedure,1973 does not oblige the investigating agency to necessarily hold the test identification parade without exception. The
Hon'ble Apex Court held as under:
“ 56 the whole idea of a Test Identification Parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime.
57 It is equally correct that the Code of Criminal
Procedure does not oblige the investigating agency to necessarily hold the Test Identification Parade. Failure to hold the test identification parade while in police custody, does not by itself render the evidence of identification in court inadmissible or unacceptable. There have been numerous cases where the accused is identified by the witnesses in the court for the first time. One of the views taken is that identification in court for the first time alone may not form the basis of conviction, but this is not an absolute rule. The purpose of the Test Identification
Parade is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of 25 prudence to generally look for corroboration of the sworn testimony of the witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence is, however subjected to exceptions. Reference can be made to Munshi Singh Gautam v. State of M.P. (2005) 9 SCC 631), Sheo Shankar Singh v. State of Jharkhand and Anr.
(2011) 3 SCC 654).
58 Identification Parade is a tool of investigation and is used primarily to strengthen the case of the prosecution on the one hand and to make doubly sure that persons named accused in the case are actually the culprits. The
Identification Parade primarily belongs to the stage of investigation by the police. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in court. Thus, it is only a relevant consideration which may be examined by the court in view of other attendant circumstances and corroborative evidence with reference to the facts of a given case.”
41. Further in Ravi Kapur vs State Of Rajasthan (AIR2012SC2986) Hon’ble Apex court held:
“ 33 In our considered view, it was not necessary to hold the test identification parade of the appellant for two reasons. Firstly, the appellant was already known to the passersby who had recognized him while driving the bus and had stated his name and, secondly, he was duly seen, though for a short but reasonable period, when after parking the bus, he got down from the bus and ran away.”
42. Thus, in view of the above legal position when the witness has opportunity to see the accused, his identification of accused in open court has much credence and mere failure to hold test identification parade did not brush aside the identification of the accused by the witness. Before accepting the evidence of witness with regard to the identification of the accused, the court has 26 to examine whether the witness has an opportunity to see the accused and he has seen the accused for sufficient time in sufficient light.
29.On consider the observations of Lordship from the above referred decisions, test identification is not required in all cases. Hence, the identification of P.W.s.1 and 2 is sufficient that the accused is driver at the time of alleged accident.
30.Now we have to observe whether accused is in drunken condition at the time of accident or not. In this regard, prosecution examined one Doctor as P.W..9. He deposed that on 03.08.2018 at about 3.59 p.m., he has examined one Neelapu Nagaraju i.e. accused herein, who was produced before him through P.C.No.2849 of III Town Law and Order
Police, Kakinada and found he was in intoxicated under influence of alcohol.
Through this witness medical certificate i.e. drunken drive certificate issued by him marked as Ex.P.6 along with outpatient receipt. In his cross examination he deposed that the above said PC No.2849 approached him with a request memo to examine the Neelapu Raju. He further deposed that
Ex.P.6 has no reference about the written letter, but written the P.C. number.
He added that original letter received from concerned police was attached to the accident register. He admitted that outpatient receipt attached with
Ex.P.6 is part of his certificate and also issued by him. He admitted that outpatient receipt has a date 07.08.2018. Witness adds that outpatient receipt was issued on compelled patient after examining intoxication. He further deposed that he has examined the patient to issue Ex.P.6 i.e. speech slurrish, staggering gait, breath smell alcohol, pupils dilated both eyes. He admitted that he has not mentioned in Ex.P.6 about what test he has conducted on patient to come to a conclusion.
31.P.W.10 i.e. investigating officer deposed that on the same day i.e., date of accident at about 5.00pm., P.W..5 produced the driver of auto 27
before him. He further deposed that he referred the accused for medical
examination regarding drunkenness condition. We observed the presence of
P.W..5 at the time of accident is highly impossible but we cannot throw away that his presence is not at all at the place of accident. Admittedly P.W..5 and deceased are residing is same street. Hence, he has every chance to reach accident place on came to know the accident. As per the charge sheet contents, public handed over the driver of crime auto to police. We have already observed P.W.s.1 and 2 went there on hearing the sound. As such, who were moving on the street has every chance to gather at the place of accident. Moreover accident had taken at about 1.00 p.m., that too on main road. As per the defence cross examination of P.W.2 at the place of accident there are other motor field shops situated. The mob who were gathered has opportunity to restrict the movements of driver of crime auto and handed over to police.
32.In this regard, the learned counsel for defence argued that prosecution failed to prove the rash and negligent driving of the driver of crime auto at the time of accident. Rash and negligent means not at all drove the vehicle at high speed. However, the learned counsel for defence relied the decision reported in 2001 CRL.L.J. 3762 between Smt.Manju
Baradia …... petitioner Vs. State of Chhattisgarh …... Respondent.
While relying this decision, the learned counsel for defence taken attention at relevant pages, which read as follows:
However, shorn of its doctrinaire features, understood in the broad, general sense, as by the other line of decisions, only as a convenient ratiocinative aid in assessment of evidence, in drawing permissive inferences under Section 114 , Evidence Act , from the circumstances of the particular case, including the constituent circumstances of the accident, established in evidence, with a view to come to a conclusion at the time of judgment, whether or not, in favour of the alleged 28 negligence (among other ingredients of the offence with which the accused stands charged), such a high degree of probability as distinguished from a mere possibility has been established which will convince reasonable men with regard to the existence of that fact beyond reasonable doubt. Such harnessed, functional use of the maxim will not conflict with the provisions and the principles of the Evidence Act relating to the burden of proof and other cognate matters peculiar to criminal jurisprudence.
30. Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are :
Firstly, all the circumstances, including the objective circumstances constituting the accident from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of determinative tendency pointing underingly towards the guilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt."
24. The Supreme Court has clearly observed that principles of res ipsa loquitur arc not special rule of substantive law, but is only an aid in the evaluation of evidence. According to the Supreme Court, this principle allows the drawing of a permissive inference of fact as distinguished from a mandatory' presumption properly so-called, having regard to the totality of the circumstances and probabilities of the case.
25. Again in the matter of N.K.V.Bros. (P) Ltd. Vs. M.
Karumani Ammal and others etc., reported in AIR 1980
SC 1354, while considering the question in a different
29 context in relation to Section 110-B of the Motor Vehicles
Act, 1939, the Supreme Court observed that the requirement of culpable rashness under Section 304A ,
Indian Penal Code is more drastic than negligence sufficient under the law of tort to create liability.
26. The learned Appellate Court in Para 9 of its judgment has observed that the place of the accident was a busy road, the accused-appellant was a novice, had only a learner's licence backed the vehicle, then gave excessive raise to the accelerator, drove the vehicle ahead and hit the scooterist; "all the facts taken in juxta-position would show that there was failure on the part of the accused to exercise reasonable and proper care". While relying upon the judgment in the matter of AIR 1953 SAU 10, the learned Court below probably did not know about the judgment of the M.P. High Court reported in AIR 1958 MP 205 (supra). Regarding, non-examination of the pillion rider, the Court below found that his non-examination was not necessary because the prosecution had examined three eye-witnesses. Unfortunately, the
Appellate Court did not sec the records correctly because barring P.W.. 1 Kishore Kumar and P.W.. 3 Damru Dhar, there is no third eye-witness. A legal appreciation of the evidence with due caution and care could clearly show that neither P.W.. 1 Kishore Kumar nor P.W.. 3 Damru
Dhar are the eye-witnesses.
27. The trend these days is to hold a driver of the vehicle guilty in a case of accident, but the said approach is contrary to the law unless it is shown by the prosecution by leading cogent, reliable and positive evidence. The fact of accident would not lead to a presumption that the accused was guilty of negligence or rashness.
28. In the matter of Mohammed Aynuddin alias Miyam
Vs. State of Andhra Pradesh, reported in JT 2000 (8) SC 317, the Supreme Court has observed that it would be a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be 30 accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. The Supreme
Court further observed that the principles of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer.
29. In relation to the question of the identity of the wrong doer, the learned Appellate Court has relied upon the statements of P.W.. 2 Yogesh Chandra, who simply stated that when he reached on the spot, he saw the crowd who were whispering that in the accident a boy has been crushed. The said witness has been the offending vehicle, near which a lady similar to the present accused was washing and cleaning the car. In the opinion of this Court, this evidence is absolutely cryptic. No reliance could be placed no such cryptic evidence which lacks in details. The witness did not say that it was the accused who was standing near the car and washing the same. In fact the statement of P. W. 2
Yogesh Chandra did not lead me anywhere. From the evidence, it does not appear as to how the accident took place. Nobody says that from what side the scooterist was coming. Nobody knows that the scooter hit the car or the car hit the scooter. The evidence in relation to the identity of the accused is cryptic. The evidence relating to the rashness or negligence or excessive speed is missing.
Non-seizure of gas-cylinder and non-examination of the pillion rider would speak against the prosecution. P.W.. 1
Kishore Kumar, from his conduct does not appear to be an eye-witness and P.W.. 3 Damru Dhar, in fact had reached the spot of the accident after the event had 31 taken place.
30. After considering the total evidence in true perspective, I hold that the identity of the accused/wrong doer/driver of the vehicle is not established.
31. Non-seizure of the gas-cylinder and non-examination of the pillion rider in the Court would give a dent to the reliability of the prosecution case. P.W.. 1 Kishore Kumar docs not appear to be an eye-witness, but appears to have reached Dr. Agrawal's clinic when the deceased was being brought out from the said clinic. P.W.. 3 Damru
Dhar, who has his pan thela at a distance of 100 mtrs.
from the spot, rushed towards the spot after hearing the alarms of rickshaw pullers. There is no evidence on the record to show that the driver of the vehicle was driving rashly or negligently or at an excessive speed.
33.But in this case, when we consider the observation of Appex
Court in State Tr. P. S. Lodhi Colony, New Delhi v. Sanjeev Nanda [AIR 2012 SC 3104: (2012(8) SCC 450]. In this decision Lordship observation is not on par with observation in relied decisions of Defence.
“29. It is a settled principle of law that if something is required to be done in a particular manner, then that has to be done only in that way or not, at all. In AIR 1936 PC 253 (2) Nazir Ahmad Vs. King Emperor, it has been held as follows:
“......The rule which applies is a different and not less well recognized rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. ......”
30. It has also come on record that seven persons were standing close to the middle of the road. One would not expect such a group, at least, at that place of the road, that too in the wee hours of the morning, on such a wintry night. There is every possibility of the accused failing to see them on the road. Looking to all this, it can be safely assumed that he had no intention of causing bodily injuries to them but he had certainly knowledge that causing such injuries and fleeing away from the scene of accident, may ultimately result in their deaths.
32
31. It is also pertinent to mention that soon after hitting one of them, accused did not apply the brakes so as to save at least some of the lives. Since all the seven of them were standing in a group, he had not realized that impact would be so severe that they would be dragged for several feet. Possibility also cannot be ruled out that soon after hitting them, respondent, a young boy of 21 years then, might have gone into trauma and could not decide as to what to do until vehicle came to a halt. He must have then realized the blunder he committed.
32. Respondent, instead of rendering helping hand to the injured, ran away from the scene, thus adding further to the miseries of the victims. It is not a good trend to run away after causing motor road accidents. An attempt should be made to render all possible help, including medical assistance, if required. Human touch to the same has to be given.
33. An aspect which is generally lost sight of in such cases is that bodily injuries or death are as a consequence of accidents. ‘Accident’ has been defined by Black’s Law Dictionary as under:
“Accident: An unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated.” Thus, it means, if the injury/death is caused by an accident, that itself cannot be attributed to an intention. If intention is proved and death is caused, then it would amount to culpable homicide.
34. It is to be noted that in Alister Anthony Pareira’s case, the earlier two judgments of this Court reported in (1976) 1 SCC 889 State of Gujarat Vs. Haiderali Kalubhai, and 2008 (1) SCC 791 Naresh Giri Vs. State of M.P., both rendered by bench of two learned Judges of this Court, were neither cited nor have been referred to. Thus, the ratio decidendi of these cases has not at all been considered in Alister’s case.
35. In the former case, it has been held in paras 4 and 5 as under:
“4. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 Indian Penal 33
Code or murder under Section 300 Indian Penal Code. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some persons, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Each case will, therefore, depend upon the particular facts established against the accused.
5. The prosecution in this case wanted to establish a motive for committing the offence against the sarpanch. It was sought to be established that there was enmity between the sarpanch and the accused and his relations on account of panchayat elections. Some evidence was led in order to prove that the accused and his relations were gunning against the sarpanch for some time after the latter's election as sarpanch. Even an anonymous letter was received by the sarpanch threatening his life which was handed over to the police by the sarpanch. Both the Sessions Judge as well as the High Court did not accept the evidence appertaining to motive. Mr. Mukherjee, therefore, rightly and very fairly did not address us with regard to that part of the case. Even so, the learned Counsel submits that the act per se and the manner in which the vehicle was driven clearly brought the case under Section 304 Part II Indian Penal Code.” It is further held in the same judgment at para 10 as under :
“10. Section 304-A, by its own definition totally excludes the ingredients of Section 299 or Section 300, I.P.C.
Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a person's death are ingredients of the offence of culpable homicide. When intent or knowledge as described above is the direct motivating force of the act complained of, Section 304 A has to make room for the graver and more serious charge of culpable homicide.” It is interesting to note that this judgment had been a sheet anchor of arguments of both the learned senior counsel appearing for parties. They have read it differently and have tried to put different interpretations to the same.
In the latter case of Naresh Giri it has been held in the Head note as under:
“Section 304 A Indian Penal Code applies to cases where there is no intention to cause death and no knowledge that the act 34 done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300
Indian Penal Code. Section 304 A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.
Section 304 A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person’s death is culpable homicide. When intent or knowledge is the direct motivating force of the act, Section 304 A has to make room for the graver and more serious charge of culpable homicide.” We may profitably deal with definition of ‘Reckless’ as defined in Lexicon, which reads as under:- “Characterized by the creation of a substantial and unjustifiable risk of harm to others and by a conscious (and sometimes deliberate) disregard for or indifference to that risk; heedless; rash. Reckless conduct is much more than mere negligence: it is a gross deviation from what a reasonable person would do. (Black, 7th Edn. 1999) Intention cannot exist without foresight, but foresight can exist without intention. For a man may foresee the possible or even probable consequences of his conduct and yet not desire them to occur; none the less if he persists on his course he knowingly runs the risk of bringing about the unwished result. To describe this state of mind the word “reckless” is the most appropriate.”
36. For our own benefit it is appropriate to reproduce Section 304 of the Indian Penal Code, which reads thus:
“304. Punishment for culpable homicide not amounting to murder – Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act 35 by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”
37. Critical and microscopic analysis thereof shows that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both.
38. Now, we have to consider if it is a fit case where conviction should be altered to Section 304 Part II of Indian
Penal Code and sentence awarded should be enhanced.
39. We are of the considered view that looking to the nature and manner in which accident had taken place, it can safely be held that he had no intention to cause death but certainly had the knowledge that his act may result in death.
40. Thus, looking to the matter from all angles, we have no doubt in our mind that knowledge can still be attributed to accused Sanjeev that his act might cause such bodily injuries which may, in ordinary course of nature, be sufficient to cause death but certainly he did not have any intention to cause death. He was not driving the vehicle with that intention. There is nothing to prove that he knew that a group of persons was standing on the road he was going to pass through. If that be so, there cannot be an intention to cause death or such bodily injury as is likely to cause death. Thus, in our opinion, he had committed an offence under Section 304
Part II Indian Penal Code. We accordingly hold so.
(i) AIR 2012 SC 3104: (2012(8) SCC 450 - State Tr. P. S. Lodhi
Colony, New Delhi v. Sanjeev Nanda
(ii) AIR 2012 SC 3802 : (2012) 2 SCC 648 - Alister Anthony Pareira v. State of Maharstra
20. In two recent judgments, the Apex Court, after considering large number of judgments on the scope of
Sections 299, 300, 304A, 304(I) and 304(II) of the Indian Penal
Code, came to the conclusion that each case obviously has to be decided on its own facts. In a case where negligence or 36 rashness is the cause of death and nothing more, Section 304A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304, Part II, Indian Penal Code may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrong doer to cause death, offence may be punishable under Section 302, Indian Penal Code.
Thereby while deciding that case of Alister Anthony Pareira (supra) where in charges under Section 304 (II) were confirmed and in the case of Sanjeev Nanda (supra) when trail court has confirmed the sentences under Section 304 Part (II) though charge was framed u/s 304 (A) and though High Court has converted the sentence under Section 304 (A), the Apex Court has, confirming the charges and sentence under Section 304 (II), allowed the appeal of the state; in following words:
39. We are of the considered view that looking to the nature and manner in which accident had taken place, it can safely be held that he had no intention to cause death but certainly had the knowledge that his act may result in death.
40. Thus, looking to the matter from all angles, we have no doubt in our mind that knowledge can still be attributed to accused Sanjeev that his act might cause such bodily injuries which may, in ordinary course of nature, be sufficient to cause death but certainly he did not have any intention to cause death. He was not driving the vehicle with that intention. There is nothing to prove that he knew that a group of persons was standing on the road he was going to pass through. If that be so, there cannot be an intention to cause death or such bodily injury as is likely to cause death. Thus, in our opinion, he had committed an offence under Section 304,
Part II Indian Penal Code. We accordingly hold so.
x x x x x x x x x x x x
99. x x x x x x x x x The accused had sufficient knowledge that his action was likely to cause death and such an action would, in the facts and circumstances of this case fall under
Section 304(II) of the Indian Penal Code and the trial court has rightly held so and the High Court has committed an error in converting the offence to Section 304A of the Indian Penal
Code.
x x x x x x x x x x x x
106. The High Court, in our view, has committed an error in 37 converting the conviction to Section 304A of the Indian Penal
Code from that of 304(II), Indian Penal Code and the conviction awarded calls for a re-look on the basis of the facts already discussed, otherwise this Court will be setting a bad precedent and sending a wrong message to the public. After having found that the offence would fall under Section 304(II), Indian
Penal Code, not under Section 304A, the following sentence awarded would meet the ends of justice, in addition to the sentence already awarded by the High Court.
21. In above cited two cases, the Apex Court has dealt with the issue in details and referred almost 24 previous cases on diverse issues as well as different provisions of Indian Penal
Code and M V Act. Those cases were final appeal against conviction. Whereas I have to restrain from referring every details, for simple reason that at present we are concern with an application for discharge under Section 227 of Code, where entire evidence should not be churn so as to arrive at any specific conclusion regarding innocence or guilt of the applicant, but prima facie evidence and suspicious about commission of offence by the accused as alleged under the charge sheet are enough to frame charge. Since those ingredients are present in this case, there is no reason to interfere with the impugned order.
22. So far the death of two persons are concerned, reliance on cases of Rajkumar and Ravikumar (Supra) by the learned counsel is not material, because the fact remains that these both cases are of regular trial i.e. after considering the evidence on record and in both cases practically, Honourable the Apex Court has not interfered with the conviction order passed by the High Court, thereby in those cases the Apex Court has not to decide or arrived at a conclusion that whether the said act falls under provisions of Section 304A or 304 (II)
I.P.C. The only factual details in both such cases that though there was a death of two and eight persons, the charge was not framed under Section 304 (II) would not help the applicant to plead and prove that therefore in any case of accident charge under Section 304 (II) can never be levied and framed. In my view the said judgments would not be relevant for the purpose of deciding the present issue as in those cases; the Apex Court had come to the said conclusion after the evidence was adduced by the prosecution.
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23. The reasons and observation in the case of Ravi Kumar (supra) practically goes against the applicant, when Apex Court has categorically observed that; rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 Indian Penal Code. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that
(a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Another parameter, applied is of 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others. Still another principle that is pressed in aid by the Courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred”.
34.When we consider the observation of the Apex court in above referred 39 decision, it comes clear finding that when a person is in knowledge that his action likely to cause death of any person, without having intention to cause death, it will cover under Section 304 Part-II of Indian Penal Code. In the present case, when accused is in drunken condition drove the vehicle is itself is establishing that accused is having knowledge that in intoxication condition drove the vehicle definitely endanger the life of himself so also opposite person, who passing on the road.
35.The learned counsel for the defence argued that prosecution failed to establish the drunkenness of the accused at the time of accident. In this regard, the learned counsel for defence further argued that P.W..9 deposed that he examined the accused to give drunkenness certificate at about 3.59 pm., whereas P.W..10 deposed that he referred the accused for medical examination at about 5.00pm.,. Small contradictions never takes away the contents of documents. In this regard, when we observed the
Ex.P.6 it is clearly has recital that the Doctor examined the accused at about 3.50pm., on 03.08.2018. The learned counsel for accused further argued that as per Ex.P.6 the Doctor not conducted any breath analyzer or blood test. For this regard, the learned counsel for defence relied the unreported decision between G.Ramulu Alias Venkat Ramulu Vs. A.P.S.R.T.C.
Hyderabad. By relying, this decision the learned counsel for defence straight away this court attention in following paragraphs:
Learned counsel for the appellant would contend that the learned Chief Judge having held that the appellant suffered a fracture of vertebra in the accident in question; that due to the impact of the said accident, his both limbs were paralyzed and he also sustained permanent disability, erred in granting an amount Rs.25,000/- only as compensation. He further contended that even though the learned Chief Judge held that the appellant was under the influence of alcohol, the medico legal record produced by 40 the Oceania General Hospital under Ex.B1 did not reveal the actual extent or quantity of the alcohol in his blood.
While relying on Section 185 of the Motor vehicles Act, 1988 (for short 'the Act'), learned counsel would contend that since the extent of alcohol in the blood was not mentioned, it is not known as to whether the appellant was really incapable of exercising proper control over the vehicle and since the learned Chief Judge did not consider that aspect the matter is liable to be remanded to the
Chief Judge for fresh disposal.
Section 185 of the Act reads thus:
"Driving by a drunken person or by person under the influence of drugs:- whoever, while driving or attempting to drive a motor vehicle, (a) has, in blood, alcohol, exceeding 30 mg. Per 100 l. of blood detected in a test by a breath analyser, or (b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle shall be punishable for the first offence with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees, or with both and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both. In the instant case, the learned Chief Judge except stating that the appellant was under the influence of alcohol while driving the vehicle, did not mention anything in his order as to what is the actual extent of alcohol in the blood and as to whether it exceeded the permissible limit of 30mg. per 100 litre of blood so as to make the appellant incapable of exercising proper control over the vehicle, as contemplated under Section 185 of the Act. Hence, the matter is liable to be remanded to the learned Chief Judge for fresh adjudication on this aspect.
36.When we consider the evidence of P.W..9, he clearly and categorically deposed that he examined the accused by conducting Speech 41 slurrish, staggering gait, breath smell alcohol, pupils dilated both eyes. It is no doubt, as per admission of P.W..9 those facts not incorporated in Ex.P.6.
P.W..9 is a Doctor i.e. an expert. Hence, the expert is need not be mentioned all the things done by him to give opinion. Being an expert on observing the patient particularly to certify about drunkenness the Speech slurrish, staggering gait, breath smell alcohol, pupils dilated both eyes are very sufficient to certify that whether patient is under control of alcohol. It is no need to certify the patient condition regarding the drunkenness in all cases to conduct either breathes analyzer or blood test. As such, this court not found any strength in arguments raised by defence counsel on Ex.P.6. The learned counsel for accused further argued that as per outpatient slip was issued on 07.08.2018 whereas Ex.P.6 is issued on 03.08.2018. He further argued that drunkenness certificate is a manipulated document and accused only examined on 07.08.2018. Being a Doctor P.W..9 has no necessity to issue false certificate against any person. For that regard defence also not raised any contention. Moreover, P.W..9 clearly and categorically admitted the outpatient slip also issued by him. He added that on compulsion of patient he issued the outpatient slip. P.W..9 also deposed that when police brought the person they need not to issue outpatient slips. The drunkenness certificate having recitals as PC No.2849 accompanied with accused, but outpatient slip has no such endorsement. Moreover, the outpatient slip is only to conduct ECG. But investigating officer referred the accused to certify about drunkenness. As per the arguments raised by accused to certify drunkenness certificate of person conduct E.C.G test is not necessary.
Subsequent to issuance of drunkenness certificate, accused might be again went to Government General Hospital, Kakinada to take ECG and that he compelled for issuance of outpatient certificate. The accused tried to raise a cloud over the drunkenness certificate by obtain outpatient slip. On consider the above observation, this court also not found any strength in arguments 42 raised by learned counsel for defence that Ex.P.6 particularly drunken certificate issued on any influence.
37.The learned counsel for defence argued that crime auto has no damages. On perused the evidence of prosecution crime Auto’s left side hed light and side mirror caused damage. Said fact also appearing in photographs. But learned counsel for defence argued that no glass pieces on road. No witness for prosecution side deposed as glass of auto broken and its pieces were on road. he learned counsel for defecne argued that
Motor Vehicle Inspector (P.W.8) admitted that he examined the crime vehicle after two months of accident. P.W.8 clearly deposed that she was not observed any mechanical defect in crime Auto. It is not the evidence of the
P.W.8 that prior to her examination any repair effected to the crime Auto.
When no repairs were effected to crime Auto, even she examined the Auto after two months will not effect the case of prosecution.
37.On consider the above discussion, we can hold that prosecution is in a position to prove the guilt of accused beyond all reasonable doubts for the offence under Sections 304 Part-II read with Section 279 of Indian Penal code and Section 185 of Motor Vehicle Act.
Sd/-Dr.B.Lakshmi Narayana
II Addl. Asst. Sessions Judge, Kakinada. (FAC) III Addl. Asst. Sessions Judge, Kakinada.
Heard accused with regard to the quantum of sentence, accused represented that he has two small children, who are depending on his daily earnings. The accused submitted the above submission and seeks to take lenient view in imposing punishment.
Considering the representation of the accused, if taken lenient view it shows effect on society at large. We have already observed this accused caused death of a person while drove the vehicle in drunkenness. The accused is found guilty for the offence under section 304 part-II of read with 279 of Indian Penal Code and he is convicted for the said offence under section 235(2) of Cr.P.C. for a period of five years simple imprisonment and he is sentenced to pay a fine of Rs.5,000/- (Rupees five thousand only) in default of payment of fine, he shall undergo simple imprisonment for a period of six months.
43
The accused is also found guilty for the offence under section 185 of M.V.Act and he is convicted for the said offence under Section 235(2) Cr.P.C. for a period of six months simple imprisonment and sentenced to pay a fine of Rs.2,000/-(Rupees two thousand only) in default of payment of fine, he shall undergo simple imprisonment of a period of three months. Both the sentences are shall run concurrently. Accused was informed of his right to prefer appeal against the Judgment of this Court and right to get free legal aid before the appellate Court. The period of remand undergone by accused at the time of remand from 07.08.2018 to 06.09.2018 shall be given set off under Section 428 Cr.P.C.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in open court, on this 10th day of March, 2020.
Sd/-Dr.B.Lakshmi Narayana
II Addl. Asst. Sessions Judge, Kakinada. (FAC) III Addl. Asst. Sessions Judge, Kakinada.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECTUION:
P.W..1: Janipalli Ashok
P.W..2: K.Sekhar
P.W..3: G.Sridevi
P.W..4: G.Kamalakar Rao
P.W..5: Mudum Mohanrao
P.W..6: K.Venkata Satyanarayana
P.W..7: Dr.Uma Maheswara Rao
P.W..8: M.Kala Jyothi
P.W..9: Dr.Md.Abdul Saleem
P.W..10: Sk.Moulana
P.W..11: P.Kishore Kumar
FOR DEFENCE: --none--
DOCUMENTS MARKED
FOR PROSECUTION:
Ex.P.1: 161 Criminal Proceedure Code Statement of P.W..1. Ex.P.2: Scene Observation Report Ex.P.3: Inquest Report Ex.P.4: Post Mortem Report Ex.P.5: M.V.I.Report Ex.P.6: Drunken medical certificate Ex.P.7: Police Intimation Ex.P.8: Original F.I.R. EX.p.9: Rough Sketch Ex.P.10: Positive Photographs Ex.P.11: Altercation memo 44
FOR DEFENCE:
--Nil--
MATERIAL OBJECTS MARKED
-Nil-
Sd/-Dr.B.Lakshmi Narayana
II Addl. Asst. Sessions Judge, Kakinada. (FAC) III Addl. Asst. Sessions Judge, Kakinada.
// TRUE COPY//
II Addl. Asst. Sessions Judge, Kakinada. (FAC) III Addl. Asst. Sessions Judge, Kakinada.
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CALENDAR
IN THE COURT OF III ADDITIONAL ASSISTANT SESSIONS JUDGE ::
KAKINADA
PRESENT: Dr.B. LAKSHMI NARAYANA
II ADDL. ASST. SESSIONS JUDGE, KAKINADA
(FAC) III ADDL.ASST SESSIONS JUDGE, KAKINADA
Tuesday, this the 10th day of March, 2020
SESSIONS CASE No.127/2019
(PRC.No.82/2018 of IV Addl. Judicial First Class Magistrate’s Court, Kakinada in Cr.No.133/2018 of SHO, III Town L & O Police Station, Kakinada)
Complainant: Accused: NeelapuNagaraju@Raju, State: Sub-Inspector of Police, IIIS/o.Gurumurthy, age 42 years, Town L & O PS, Kakinada.C/Reddika, D.No.2-6-50, Nukalamma Manyam, Kakinada, Driver of Auto bearing No.AP 05 TE 0833, Cell No.87908 56087, Adhar No.4337 8368 9093.
Prosecution conducted by:Accused defended by: Sri K.Sridhar Sri K.B.Pratap Kumar Advocate for accused
Additional Public Prosecutor,
Kakinada.
Nature of Offence:Under Section 304- Part II r/w Section 279 Indian Penal Code and 185 of Motor Vehicle Act
Plea of the accused:Guilty
Finding of the Judge:Guilty
Sentence order:In the result, accused is found guilty for the offence under section 304 part-II of read with 279 of Indian Penal Code and he is convicted for the said offence under section 235(2) of Cr.P.C. for a period of five years simple imprisonment and he is sentenced to pay a fine of Rs.5,000/- (Rupees five thousand only) in default of payment of fine, he shall undergo simple imprisonment for a period of six months. The accused is also found guilty for the offence under section 185 of M.V.Act and he is convicted for the said offence under Section 235(2) Cr.P.C. for a period of six months simple imprisonment and sentenced to pay a fine of Rs.2,000/- (Rupees two thousand only) in default of payment of fine, he shall undergo simple imprisonment of a period of three 46 months. Both the sentences are shall run concurrently. Accused was informed of his right to prefer appeal against the Judgment of this Court and right to get free legal aid before the appellate Court. The period of remand undergone by accused at the time of remand from 07.08.2018 to 06.09.2018 shall be given set off under Section 428 Cr.P.C.
DATES OF
Offence:03-08-2018
Complaint:03-08-2018
Apprehension of accused:07-08-2018
Commencement of trial:18-12-2019
Closure of Trial:11-02-2020
Sentence/Order:10-03-2020
Explanation for Delay:
This case has been made over to this Court by the Court of Sessions, East Godavari District, Rajamahendravaram on 25-06-2019 for disposal according to law. On appearance of accused on 29-07-2019 before this court, charges have been framed on 03-12-2019. In this case P.W.s.1 to 11 are examined and Exs.P.1 to P.11 were marked on behalf of the prosecution and on behalf of the defence no documents were marked. Trial of the case commenced on 18-12-2019 and closed on 11-02-2020. Accused was examined under Section 313 Criminal Procedure Code on 14-02-2020 and arguments were heard on 05-03-2020 and judgment is pronounced on 10-03- 2020. Hence, there is no in-ordinate delay.
Sd/-Dr.B.Lakshmi Narayana
II Addl. Asst. Sessions Judge, Kakinada. (FAC) III Addl. Asst. Sessions Judge, Kakinada.
// TRUE COPY//
II Addl. Asst. Sessions Judge, Kakinada. (FAC) III Addl. Asst. Sessions Judge, Kakinada.
Copies submitted to:
1.The Hon'ble Registrar (Judl.) Hon'ble High Court of Andhra Pradesh, Nelapadu, Guntur District.
2.The Directorate of Prosecution, Andhra Pradesh, Nelapadu, Guntur Dist.
3. The Hon'ble District Judge, East Godavari, Rajamahendravaram.
4.The Superintendent of Police, Kakinada.
5.The Collector, East Godavari District, Kakinada.
6.The IV Judicial Magistrate of the First Class, Kakinada
7.Copy to the District Legal Services Authority, Rajamahendravaram.
8. The Public Prosecutor, East Godavari District, Kakinada.
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